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Emanuelson v. University of North Carolina at Greensboro

United States District Court, M.D. North Carolina

April 12, 2018




         This matter is before the court on a motion to dismiss by Defendants Robin E. Remsburg, Franklin D. Gilliam, and the University of North Carolina at Greensboro. (See Docket Entry 13.) Plaintiff Joseph Emanuelson has responded to the motion. (See Docket Entry 17.) For the reasons that follow, the undersigned will recommend that Defendants' motion be granted in part and denied in part.

         I. BACKGROUND

         This action arises from Plaintiffs dismissal from the University of North Carolina at Greensboro's ("UNCG") graduate nursing program ("the program"). (See generally, Compl., Docket Entry 1.) Plaintiff enrolled at UNCG in August, 2013 seeking a Master's of Science in Nursing with a concentration in nurse anesthesia, a program consisting of both academic and practicum courses. (Id. ¶ 9, 11). The clinically-based practicum courses were performed through Raleigh School of Nurse Anesthesia ("RSNA") and supervised by clinical preceptors. (Id. ¶ 11-12.) During his enrollment, Plaintiff reported multiple incidents of harassment as well as incidents of physical assault and unwanted contact by his preceptors.[1] (Id. ¶¶ 12, 25- 27.) Also during his enrollment, Plaintiffs physicians diagnosed him first with anxiety and major depression and later with generalized anxiety disorder, obsessive compulsive disorder, and major depressive disorder. (Id. ¶¶ 13, 17, 24.) Plaintiffs physicians wrote letters to UNCG and RSNA indicating these diagnoses. (Id.) One Physician also indicated that an April, 2014 incident of harassment and physical assault by a preceptor had been "traumatic" to Plaintiff, and that such incidents could "exacerbate [Plaintiffs] anxiety and affect attention and focus consequently." (Id. ¶ 12, 17.) In June 2014, Plaintiff registered with UNCG's Office of Accessibility, Resources and Sendees ("OARS"), which granted Plaintiff accommodations for his disability in the academic setting. (Id. ¶ 19.) Specifically, OARS granted Plaintiff additional time and a quiet environment for testing. (Id.) Despite Plaintiffs objections, neither UNCG nor RSNA granted Plaintiff accommodations for his clinical practicum courses. (Id.) On July 28, 2014, Plaintiff, UNCG, and RSNA entered into a "learning contract" that outlined how reports of mistreatment or abuse were to be handled. (Id. ¶¶ 20-21.) In pertinent part, the learning contract provided,

Any concerns of mistreatment or abuse by a preceptor will be reported immediately by phone to the RSNA faculty member overseeing the clinical experience. The faculty member will remove the student from the supervision of the clinical preceptor and reassign to another preceptor. The RSNA Associate Director of Clinical Education will follow up with the clinical agency regarding the alleged treatment/abuse and submit a report to the RSNA Director and UNCG Associate Dean for Graduate Studies.

(Id. ¶ 20-21.)

         On May 4, 2015, Plaintiff completed the academic coursework for the program. (Id. ¶ 28.) On September 18, 2015, Plaintiff completed a rotation of "independent practice" at Rex Hospital; he received satisfactory marks from all supervising preceptors there during that rotation. (Id. ¶ 19.) To earn his degree, he needed to compete eight more weeks of clinical coursework. (Id. ¶ 56.)

         On October 8, 2015, preceptor Julie Brewer sent Plaintiff home from a clinical practicum at WakeMed for alleged "poor performance." (Id. ¶ 30.)[2] Earlier that year, around May 1, 2015, WakeMed preceptor Laura Smith had informed Plaintiff that preceptor Brewer had made disparaging remarks about Plaintiffs capabilities as a nurse and student. (Id. ¶ 27, 36.) Plaintiff had reported this incident to RSNA and requested reassignment to another preceptor, but UNCG staff denied the request. (Id.) On October 11, 2015, several days after preceptor Brewer sent Plaintiff home, "Plaintiff met with clinical preceptors and RSNA faculty at WakeMed Hospital. ... At the meeting, Plaintiff was accused of falsifying medical records for a patient. Plaintiff did not return to the clinical site pending an investigation of the matter." (Id. ¶ 32.) Defendant Robin E. Remsburg, Dean of the University of North Carolina at Greensboro School of Nursing ("Defendant Remsburg"), conducted an investigation pursuant to UNCG School of Nursing Policy. (Id.)

On . . . October 20, 2015, [preceptor] Brewer wrote the evaluation for Plaintiff regarding the October 8, 2015 incident for which [Plaintiff] was sent home. . . . On . . . October 29, 2015, [UNCG] completed its investigation of an alleged unsafe practice by Plaintiff at RSNA. At the time, the results of the investigation were not disclosed to Plaintiff. . . . On . . . November 3, 2015, Plaintiff met with RSNA faculty and the Dean of the [UNCG] School of Nursing to discuss the alleged unsafe practice. . . . On . . . November 5, 2015, preceptor Laura Smith submitted a statement to [UNCG] outlining what she perceived as mistreatment of Plaintiff regarding the allegations of an unsafe practice.

(Id. ¶¶ 33-36.)

         On November 10, 2015, Defendant Remsburg notified Plaintiff that he was dismissed from the program for unsafe practice. (Id. ¶ 37.) On November 11, 2015, Plaintiff appealed his dismissal to the UNCG School of Nursing Appeals Committee ("Appeals Committee"). (Id. ¶ 38.) Plaintiff informed the school that he had hired pre-litigation counsel, and requested counsel's presence at any hearings. (Id. ¶ 39.)

         The Appeals Committee conducted a hearing on December 4, 2015. (Id. ¶ 42.) Plaintiff was not permitted to have counsel present at the hearing, or to call or question any witnesses. (Id.) Plaintiff was not provided a comprehensive list of the evidence against him. (Id.) Plaintiff was permitted to give a statement regarding the allegations, but was discouraged from doing so. (Id.) On December 10, 2015, Plaintiff was notified that the Appeals Committee had upheld his dismissal. (Id. ¶ 43.) Plaintiff submitted a written notice of appeal on December 18, 2015; UNCG Graduate School Dean William Wiener denied Plaintiffs request on January 4, 2016. (Id. ¶¶ 44-45.)

         On June 12, 2017, Plaintiff filed a complaint in this Court against Defendants UNCG, RSNA, Remsburg and Franklin D. Gilliam Jr. ("Defendant Gilliam"), Chancellor of the University of North Carolina at Greensboro. (See generally, id) Plaintiff alleges that Defendants Remsburg and Gilliam (collectively "Individual Defendants") violated his due process rights by creating and/or overseeing an appeals process that is inadequate under both the North Carolina and United States Constitutions. (Id. ¶¶ 49-63.) Under Claim One, Plaintiff brings his due process claim pursuant to 42 U.S.C. § 1983; under Claim Two, he brings his due process claim pursuant to North Carolina Constitution Article I, § 19. (Id.) Plaintiff alleges in Claim Three that by denying Plaintiff reasonable clinical accommodations, all Defendants violated the Americans with Disabilities Act ("ADA"). (Id. ¶¶ 64-76.) Finally, Plaintiff alleges in Claim Four that UNCG and RSNA violated § 504 of the Rehabilitation Act. (Id. ¶¶ 77-87.) Plaintiff seeks declaratory judgment and a temporary and permanent injunction ordering reinstatement in the program. (Id. at 17.) The Individual Defendants and UNCG move to dismiss the action pursuant to Federal Rule of Civil Procedure 12(b)(1), 12(b)(2), 12(b)(6), and 12(b)(7). (Defs.' Mot. Dismiss, Docket Entry 13 at 1.)

         On March 1, 2018, the Court held a hearing on Defendants' motion to dismiss at which defense counsel was present. (Minute Entry dated 3/1/2018.) The Court had previously scheduled that hearing for February 21, 2018. (Docket Entry 20.) However, Defendants moved to continue that hearing (Docket Entry 21); their motion was granted and the hearing was rescheduled for March 1, 2018 (Text Order dated 1/30/2018). On March 1, 2018, Plaintiffs counsel indicated by telephone on the record that he had not received notice of the hearing and was not in a position to attend at that time. (Hr'g Tr. 9:38:25-9:41:38.) The Court inquired with the clerk, who determined that Plaintiffs counsel had been given proper notice through the electronic court filing system. The Court denied counsel's request for a continuance, but granted his request for leave to be absent from the hearing and to stand on the pleadings. (Id., at 9:41:38-9:42:42.)

         II. ANALYSIS

         As an initial matter, there are several claims that may be quickly disposed of by agreement of the parties. First, the Individual Defendants have moved to dismiss Plaintiffs state-constitution-based due-process claims. (Defs.' Mem. Supp. Mot. Dismiss, Docket Entry 14 at 9-10.) Defendants argue that Plaintiffs state-constitution-based claims are barred by the Eleventh Amendment, and that Plaintiff did not lack an adequate state remedy. (Id.) The Court need not reach these arguments because in his opposition brief, Plaintiff abandoned these state claims. (Pl.'s Mem. Opp. Mot. Dismiss, Docket Entry 17 at 6.) Plaintiffs state claims should therefore be dismissed.

         Second, Defendants argue that Plaintiff is not entitled to punitive damages. (Defs.' Mem. Supp. Mot. Dismiss at 23.) In his complaint, Plaintiff does not expressly seek either compensatory or punitive damages. (Compl. at 17.) In his opposition brief, Plaintiff confirms that he is not seeking punitive damages (or any damages). (Pl.'s Mem. Opp. Mot. Dismiss at 13.) Thus, there appears to be no dispute on this issue. To the extent that the Court might find that Plaintiffs prayer for "further relief as it deems just and proper" (Compl. at 17) includes a claim for punitive damages, any such claim should be dismissed.

         A. Failure to Join a Necessary Party

         Defendants next argue that Plaintiffs complaint should be dismissed because he failed to join WakeMed, a necessary party to the action. (Defs.' Mem. Supp. Mot. Dismiss at 22.) On a motion under Rule 12(b)(7), the court initially determines whether the absent party-should be joined as a party in accordance with the criteria set forth in Rule 19(a).[3] If the court finds that the party is indeed necessary, the party will be ordered into the action. When the absent party cannot be joined, the court will determine, by analyzing the factors described in Rule 19(b), [4] whether to proceed without the absent party or to dismiss the action. 7 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1609 (1986). In general, federal courts are extremely reluctant to grant motions to dismiss based on nonjoinder, and dismissal will be ordered only when the defect cannot be cured and serious prejudice or inefficiency will result. See Provident Tradesmens Bank & Tr. Co. v. Patterson, 390 U.S. 102, 118 (1968).

         Here, Defendants argue that joinder is necessary because if Plaintiffs injunction is granted, he will have to complete the remaining clinical courses at WakeMed. (Defs.' Mem. Supp. Mot. Dismiss at 22.) Plaintiff counters that he can complete his clinical coursework at Rex Healthcare or Duke Raleigh Hospital. (Pl.'s Mem. Opp. Mot. Dismiss at 13.) Defendants reply that joinder of one of the above-named institutions is therefore necessary. (Defs.' Reply Pl.'s Mem. Opp. Mot. Dismiss at 12.) At this time, the court is not persuaded that WakeMed is necessary to a just adjudication of the issues before the court. Defendants' motion to dismiss based on Rule 12(b)(7) should therefore be denied.

         B. Subject Matter Jurisdiction and Sovereign Immunity.

         Next, the Individual Defendants move to dismiss Plaintiffs § 1983 claim for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) and the Eleventh Amendment. (Defs.' Mem. Supp. Mot. Dismiss at 7-9.) Rule 12(b)(1) provides for dismissal where the court lacks jurisdiction over the subject matter of the lawsuit. Lack of subject-matter jurisdiction may be raised at any time either by a litigant or the court. Mansfield, C &L.M.R Co. v. Swan, 111 U.S. 379, 382 (1884). The defense of sovereign immunity is properly addressed under Rule 12(b)(1). See Anderson v. United States, 669 F.3d 161, 164 (4th Or. 2011), certified question answered, 427 Md. 99, 46 A.3d 426 (2012); if. Smith v. Wash. Metro. Area Transit Auth, 290 F.3d 201, 205 (4th Cir.2002) (citing Williams v. United States, 50 F.3d 299, 304 (4th Or. 1995)).

         Pursuant to the Eleventh Amendment, sovereign immunity prohibits actions in federal court by individuals against a state unless the state has consented to suit or unless Congress has lawfully abrogated the states' Eleventh Amendment immunity. Ballenger v. Owens, 352 F.3d 842, 844-45 (4th Cir. 2003). "[U]nder the Eleventh Amendment, a State cannot be sued directly in its own name regardless of the relief sought, absent consent or permissible congressional abrogation." Id. (internal quotation omitted). The doctrine of sovereign immunity under the Eleventh Amendment applies not only to actions in which the State is a named defendant, but also to actions against its departments, institutions, and agencies. DeMurry v. N.C. Dep't of Corr., 195 N.C.App. 485, 492-93, 673 S.E.2d 374, 380-81 (2009). Additionally, in North Carolina, "[a]ctions against officers of the State in their official capacities are actions against the State for the purposes of applying the doctrine of [sovereign] immunity." Green v. Kearney, 203 N.C.App. 260, 268, 690 S.E.2d 755, 762 (2010) (citation omitted); see also Mullis v. Sechrest, 347 N.C. 548, 554, 495 S.E.2d 721, 725 (1998) ("[O]fficial-capacity suits are merely another way of pleading an action against the governmental entity.").

         Here, UNCG is a constituent institution of the University of North Carolina and, as such, UNCG, like the University of North Carolina, is an agency of the State of North Carolina entitled to Eleventh Amendment immunity. N.C. G.S. § 116-3-4; Huang v. Bd. Governors Univ. N.C, 902 F.2d 1134, 1138-39 (4th Cir. 1990) (holding that N.C. G.S. § 116-3 does not operate as a waiver of the state's immunity under U.S. Const., Amend. XI, and the state has not waived immunity as it applies to the state university system), reh'g denied, 1990 U.S. App. LEXIS 13966 (4th Cir. June 12, 1990) (en banc); Costello v. Univ. o/ N.C. at ...

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